Hanson v. International Union of Operating Engineers Local No. 406

• Decision Date: 25 March 1955
• Docket Number: No. 3958,3958
• Citation: 79 So.2d 199
• Parties: A. J. HANSON, d/b/a A. J. Hanson Company, v. INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL NO. 406.
• Court: Court of Appeal of Louisiana — District of US

Page 199

79 So.2d 199

A. J. HANSON, d/b/a A. J. Hanson Company, v. INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL NO. 406.

No. 3958.

Court of Appeal of Louisiana, First Circuit.

March 25, 1955.

Dodd Hirsch & Barker, New Orleans, for appellant.

Breazeale, Sachse & Wilson, Baton Rouge, Lestage & Arnette, Jennings, for appellee.

ELLIS, Judge.

A. J. Hanson, d/b/a A. J. Hanson Company, filed this suit in which he prayed for a temporary restraining order, temporary injunction, and after hearing, a permanent injunction enjoining 'said defendants and members and associates and all members of said International Union of Operating Engineers, Local No. 406, affiliated with the A. F. of L.' from 'in any manner picketing or maintaining either singularly or collectively, pickets at or about or near petitioner's place of business, including all buildings, occupied by petitioner's employees when at work, storage yards, parking lot, and particularly at those areas wherein petitioner is conducting its operation in the Parish of Jefferson Davis, and particularly across those areas wherein petitioner must have egress and ingress to and from his lots or material storage dumps to the work which he is performing and from engaging in what is commonly designated as picketing and from ordering, coercing or inducing any of plaintiff's employees to leave their jobs during working hours, to engage in any order work stoppages or strikes, or from issuing any orders which may result in a strike or work stoppage and from issuing any orders for meetings, assemblies or any other purposes, designed to or resulting in petitioner's employees leaving their jobs during regular working hours * * *'.

Without notice or hearing, that is, immediately upon presentation of the order, the District Court issued a temporary restraining order in accordance with the wording of plaintiff's prayer, supra. Two days later, October 13, 1954, the temporary restraining order was amended to reduce the restrictions placed on the defendant for, as stated by the Trial Judge in his written reasons: 'It appeared that the language of the order was more far reaching than had been realized when the matter was first presented.'

The matter came up for hearing on October 19, 1954 and the named defendants, who were the International Union of Operating Engineers, with Local No. 406 affiliated with A. F. of L. through R. C. Coffer, business agent, and/or Harry Fuller, business agent, Harry Fuller, individually, and R. C. Coffer, individually, C. B. Thompson, M. Carter, H. C. Deson, and Arnold E. Webb, filed motion to dissolve and reserving all their rights under the motion, then filed exceptions which were based upon the same allegations as made in the motion to dissolve. The grounds for the motion to dissolve read in part as follows:

'1. From the prayer of its petition plaintiff has used the International Union of Operating Engineers, Local No. 406 through R. C. Coffer its business agent and Harry Fuller, business agent, and seeks to restrain said local union, its members, associates and sympathizers; that according to the petition defendant International Union of Operating Engineers, Local 406, is an unincorporated voluntary association and (1) having no corporate existence it cannot be impleaded into court under its group name, and (2) that Harry Fuller, R. C. Coffer, C. B. Thompson, M. Carter, H. C. Deson and Arnold E. Webb upon whom service of process was made are not authorized to accept service of citation for defendant organization. State ex rel. Doane v. [General Longshore Workers], I.L.A. [Local Union 1418, La.App.], 61 So.2d 747.

'2. That petition is so vague and indefinite and contains nothing but conclusions of law and no fact and is insufficient to support the order.

'3. That petitioner is engaged in a business affecting interstate commerce and the jurisdiction of the state court is preempted in a matter of this nature under the provisions of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 151 et seq.

'4. That the petitioner has failed to exhaust its administrative remedies and failed to so allege, and the petition is premature in that petitioner has failed to allege that it has endeavored to settle the labor dispute under the provisions of LSA-R.S. 23:861 et seq. which declares the public policy of Louisiana, particularly LSA-R.S. 23:870.

'5. And additionally, that it has failed to take the pre-requisite steps required by LSA-R.S. 23:821 et seq.

'6. Petition discloses no right or cause of action.

'7. The activities of defendant are protected by the I and XIV Amendments to the Constitution of the United States and Article I of the Constitution of Louisiana, in that defendants are engaged in a labor dispute with plaintiff here.'

On October 18 or one day prior to the filing of the motion to dissolve, plaintiffs had filed a supplemental and amended petition.

With reservation of all rights under the motion to dissolve and exceptions previously filed, the defendants filed an answer and the matter came up for trial on October 19 but no evidence was taken as the attorneys for plaintiff and defendants entered into a stipulation of fact which is as follows:

'I. Plaintiff is a road contractor operating only in Louisiana. The road he is now building is a part of the State highway system and not a part of any national highway and, for the purpose of this case it is stipulated that the plaintiff is not engaged in interstate commerce.

'II. The individual defendants are officers and members of the Operating Engineers, Local 406, A.F.L., the other defendant.

'III. The plaintiff has no contract with the Defendant labor organization, and the Defendant labor organization does not represent any of the employees of the Plaintiff and the Defendant labor organization has not asked any of Plaintiff's employees to join the union and has not asked the Plaintiff for any collective bargaining agreement or other contract.

'IV. Picketing of the job by the Defendants began October 7, 1954. There were four pickets authorized to represent the Defendant labor organization who were placed across the access to the place where plaintiff and his employees were engaged. Fuller, one of the individual defendants was also present, and was joined by about 25 people whom the defendants state were there to apply for jobs or who were employees of T. L. James Construction Company, engaged in road work nearby, across the State road from Plaintiff's material pile and who were generally milling about the place.

'V. The same conditions prevailed each day until the temporary restraining order was issued in this case--except that there were not more than 20 instead of 25 people assembled in addition to the pickets on each day after October 7, 1954.

'VI. Signs carried by the pickets read:

"A. J. Hanson does not have an agreement with Local 406:'

No other legend was used.

'VII. Defendants would show, though the plaintiff does not concede the relevancy or admissibility of the same, that union wages for the type of work being performed by plaintiff's employees prevailing in the area are:

per hour

Crane and Dragline Operators $2.25

Bull dozer operators 2.00

Sheepsfoot roller operators 1.75

While the wages paid by plaintiff are:

per hour

(1) Dragline operators 2.00

(1) Bull Dozer operators 2.00

(1) Sheepsfoot Roller operator 1.25 to 1.40

Crane Operator None

The other five employees of plaintiff do not do work covered by the classifications of the defendant labor organization.

'VIII. No monetary measure can be made of the damages being suffered by the plaintiff by having the job stopped by the picketing because completion of it depends upon the availability of workmen and suitability of the weather and the non-union employees of the plaintiff would not work while the picketing was in progress. Though there was no violence on the picket line, the plaintiff's employees were asked not to cross it. If called to testify, R. W. Harrison, the foreman for the plaintiff would testify that a man in the group of people assembled but not identified as a picket or official of the union, told him that 'It might not be healthy for any one to cross the picket line.' None of the plaintiff's employees were then present. None of the employees of plaintiff did cross the picket line and employees of the plaintiff would not work while the job was being picketed but returned to work after the issuance of the temporary restraining order issued herein on October 11, 1954.

'IX. Three or more members of the defendant labor organization who are residents of Jefferson Davis Parish applied to plaintiff's foreman for jobs and were refused, but Harrison, the foreman did not ask them about their union status and did not know anything about their union status and had brought all of his crew (except one man) from other jobs where they had worked for plaintiff near Pineville, Louisiana.

'X. Defendant labor organization has contracts with other employers engaged in similar work in the area where plaintiff customarily engages in work and has members employed at the wages shown in Paragraph VII above.

'XI. Presently T. L. James Construction Company is employing men in the same work classification as those of the plaintiff's employees, who are members of the defendant labor organization, on the same job site and at the union scale and there has been no interference or attempt to prevent those employees from going to work through or around the picket line.

'XII. Plaintiff has not been requested by defendants to discharge any employees and no demand has been made that he execute a contract requiring union membership or that he employ only union men, and no demand for any contract at all has been made upon him.

'XIII. Fuller, one of the defendants herein, if called to testify would state that the purpose of the picket line was to:

'(a) Publicize the union contention that plaintiff's wages and working conditions were substandard compared to...